Do I Need a Non-Grantor Trust for Estate Planning?

Yahoo News’ recent article entitled “How a Non-Grantor Trust Works” says that a grantor trust lets the grantor (the person creating the trust) maintain certain powers of the trust. No matter the scope of the powers involved, what’s unique about grantor trusts is their tax treatment—the trust grantor is responsible for paying income tax on the trust assets. Any income the trust generates or receives is taxable to the grantor, who reports it on their personal tax return.

A non-grantor trust is any trust that isn’t a grantor trust. As a result, they can’t revoke or change the terms of the trust or make changes to trust beneficiaries. This lack of control means that a non-grantor trust is treated as a separate tax entity. Therefore, the trust itself must pay taxes on any income that’s received and file a tax return. A non-grantor trust can offer certain tax benefits to the trust grantor: (i) the grantor wouldn’t have to pay tax on the trust income, which may be a benefit where the grantor prefers to assume no further financial responsibility for the trust or its assets; and (ii) there can be positive tax implications, if the trust beneficiaries are in a lower tax bracket than the grantor. When trust income is distributed to beneficiaries in a lower tax bracket, it may be taxed at a lower rate than it would if the grantor were being taxed.

Ask an experienced estate planning attorney about a non-grantor trust if you run a business, since the Qualified Business Income (QBI) deduction lets eligible taxpayers deduct up to 20% of qualified business income, as well as 20% of qualified real estate investment trust (REIT) dividends and qualified publicly traded partnership (PTP) income. If you own a business, and your income is above the allowed threshold to qualify for the QBI deduction, you could create a non-grantor trust as a work-around and divide the ownership of your business assets and its associated income. This may let you qualify for the QBI deduction.

However, there are some potential drawbacks with non-grantor trusts. Remember, the trust grantor lacks control of what happens with trust assets. It is also important to consider how any transactions between you as the grantor and the trust may be taxed. Certain interactions, including the movement of assets or income between the two, is taxable because you and the trust are two separate entities, which may mean taxes for one or the other.

In addition, an incomplete non-grantor (ING) trust is a type of trust that’s used for asset protection. It’s frequently used by those who live in states with high income tax rates or no state income tax. If you live in a state with high income tax rates, you could create an incomplete non-grantor trust and fund it using appreciated assets that have a low tax basis. If the trust is created in a state that has lower income tax rates or no state income tax, it may reduce the grantor’s tax bill when later selling those assets.

Incomplete non-grantor trusts can also allow you to transfer ownership of assets to the trust without paying gift tax. There are also the other tax benefits associated with non-grantor trusts.

Non-grantor trusts can be useful in a variety of circumstances. Ask an experienced estate planning attorney if one would be useful for your tax and estate planning situation.

Reference: Yahoo News (Nov. 9, 2021) “How a Non-Grantor Trust Works”

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